FAIR OR SHEER INJUSTICE ?
By Keith Best
Tuesday, March 3, 2009.
EDITOR'S NOTE: The British Government has just introduced an Australian-style point-based system for people emigrating into the UK from outside the European Union, below is a response to the latest bid by London to crackdown on immigration.
As a charitable organisation working on behalf of immigrants to the UK, we have welcomed the concept of the Points Based System on the basis that it should simplify the process for employers and educational establishments whereby they can find the employees and the students they need from outside the European Economic Area. It is designed to be an entirely objective system whereby applicants succeed if they have sufficient points and fail if they do not. But if no discretion is allowed for the decision maker then great injustice and expense for the sponsor and the applicant can follow which will put the whole new system into disrepute.
There are now many examples of where Tier 1 (the old Highly Skilled Migrants Programme) applicants are being refused on technicalities which do not stand the test of reasonableness or commonsense. For example, where electronic bank accounts are held and a printout is obtained which is then stamped by the bank as a genuine statement it should not then be rejected and the application refused by an immigration official on the basis that it is not an original statement.
When our staff go on to appeal these refusals before an Immigration Judge they are met with derision and the appeal is granted without even the need to hear argument. In this way the new system is not only falling into disrepute but is also costing the taxpayer more money through inept bureaucracy.
Yet these applicants are in a way the lucky ones: as in-country applicants wishing to extend their stay or change their status they have a right of appeal which we win for them. Those applicants who apply under the Points Based System from abroad are now denied a right of appeal. This is unjust and will lead to further injustice as there will be no independent scrutiny of wrong decisions. This in itself could see the system bogged down in the higher courts as the only remedy would be to go to the Administrative (High) Court by way of judicial review.
It could lead to large numbers of employees necessary to British business being denied a legitimate expectation to come to the UK. It could lead to many students being denied entry to British education establishments and forced to go to other countries to the great loss for the UK. International students contribute more than £8.5 billion to the UK economy according to the UK Border Agency. It will be bad for British business and could cause some establishments to go under with the loss of employment in the UK of the teachers and staff if these students are refused entry.
We want to see greater certainty which comes with more precision for applicants about what is needed but the quality of information provided by the UK Border Agency must be improved as there is still much confusion among those who are affected.
Moreover, there must not be conflicting messages from different parts of the UK Border Agency and, above all, the decision makers must be allowed to use their commonsense and discretion and not rely on stupid technicalities just for the sake of refusing applications.
Keith Best is head of Immigration Advisory Service UK.